In a matter involving the division of property and assets, an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process. In Austin v. Austin, the Florida Court of Appeal recently stated: “In this dissolution of marriage proceeding, we have for review the trial court’s interlocutory Order on Wife’s Emergency Motion, directing the liquidation of certain of the husband’s assets and the disbursement of the resulting funds to assist in paying an estimated $28,000 mortgage debt, and the escrowing of other funds.
The husband raises two issues challenging the trial court’s rulings. We have jurisdiction…In his second point, the husband argues the trial court abused its discretion by ordering the liquidation of his assets when that remedy had not been pled in the wife’s Motion for Emergency Relief. On this point, we agree with the husband. The wife’s motion focused solely on the anticipated attorney’s fees from JTA to pay the mortgage arrearage; nothing in her motion sought alternative funds from other sources, least of all, the husband’s assets, one of which may or may not be nonmarital. While we sympathize with the trial court’s concern that the foreclosure of the parties’ home would result in the loss of substantial equity, the dictates of procedural due process demand that a party be placed on notice and given a meaningful opportunity to be heard before being divested of his or her property. ‘It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.’ Norberg v. Norberg, 79 So. 3d 887, 889 (Fla. 4th DCA 2012) (quoting Neumann v. Neumann, 857 So. 2d 372 ,373 (Fla. 1st DCA 2003)). Accord Mondello v. Torres, 47 So. 3d 389, 397 (Fla. 4th DCA 2010) (‘[A]s a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings.’); Mizrahi v. Mizrahi, 867 So 2d 1211,1213 (Fla. 3d DCA 2004) (‘Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.’); Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981) (holding that a judgment based outside the pleadings cannot stand).”
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